United States v. Yefer Dionicio Moreno-Gomez

291 F. App'x 938
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 3, 2008
Docket07-15648
StatusUnpublished

This text of 291 F. App'x 938 (United States v. Yefer Dionicio Moreno-Gomez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Yefer Dionicio Moreno-Gomez, 291 F. App'x 938 (11th Cir. 2008).

Opinion

PER CURIAM:

Yefer Dionicio Moreno-Gomez is appealing his 168-month sentence imposed after he pled guilty to one count of conspiracy to possess with intent to distribute at least five kilograms of cocaine and one count of possession with intent to distribute at least five kilograms of cocaine, both while aboard a vessel subject to the jurisdiction of the United States. On appeal, Moreno-Gomez argues that the district court erred in denying his request for a minor-role reduction, and he contends that a 168 month sentence is unreasonable in light of the 18 U.S.C. § 3553(a) factors. Based on our review of the record and the legal arguments, we discern no reversible error and therefore AFFIRM.

*940 I. BACKGROUND

According to the undisputed facts in the presentence investigation report (“PSI”), Yefer Dionicio Moreno-Gomez was one of five crew members aboard a fishing vessel carrying approximately 2,313 kilograms of cocaine in international waters. The United States Coast Guard boarded the vessel after receiving a report that it was stopped and not fishing. Once on board, Coast Guard personnel observed several bales of cocaine in plain view and ultimately recovered 106 bales of cocaine. The crew on board the vessel consisted of three Costa Rican nationals (the captain, a deck hand, and a fisherman) and two Colombian nationals (two deck hands, one of whom was Moreno-Gomez). The Costa Rican government elected to retain jurisdiction over the three Costa Rican nationals aboard the vessel, but the two Colombian nationals, Moreno-Gomez and his co-defendant, were brought to the Middle District of Florida for prosecution.

Moreno pled guilty to one count of conspiracy to possess with intent to distribute at least five kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a) and 70506(a) and (b), and 21 U.S.C. § 960(b)(l)(B)(ii); and one count of possession with intent to distribute at least five kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. §§ 70503(a) and 70506(a) and (b), 21 U.S.C. § 960(b)(l)(B)(ii), and 18 U.S.C. § 2. Based on the charges against him, Moreno-Gomez’s base offense level was determined to be 38, pursuant to U.S.S.G. § 2Dl.l(c)(l). He also received a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a) and a one-level reduction for timely notifying authorities of his intention to plead guilty pursuant to U.S.S.G. §§ 3El.l(a) and (b). With a total offense level of 35 and criminal history category I, Moreno-Gomez’s Guideline imprisonment range was 168— 210 months.

Moreno-Gomez objected to not being given a two-level reduction under the safety valve provisions. He also objected to not receiving a minor-role reduction, arguing that he was entitled to such a reduction because: (1) he was not the owner of the vessel; (2) he was not the owner of the drugs; (3) he did not plan the route; and (4) he did not determine who was to receive the drugs. The probation officer responded that Moreno-Gomez was not entitled to such a reduction because of the amount of cocaine on board the vessel as well as the small size of the crew and Moreno-Gomez’s role as a guard. At the sentencing hearing, the district court overruled Moreno-Gomez’s objection to not being given a two-level reduction for the safety valve provisions and his objection that he should receive a minor-role reduction. R4 at 5, 12-18. Regarding the minor-role reduction, the district court agreed with the probation officer’s position. Id. at 18.

The district court sentenced Moreno-Gomez to 168 months imprisonment and five years’ supervised release. Id. at 26. The district court stated:

After considering the advisory sentencing guidelines and all of the factors identified in Title 18, United States Code, Section 3353(a)(1) through (7), the Court finds that the sentence imposed is sufficient but not greater than necessary to comply with the statutory purposes of sentencing. Sentence imposed is reasonable and adequate.

Id. at 27-28. The district court asked whether counsel for the defendant or the *941 government had any objections to the sentence, other than those previously stated for the record. Id. at 28. Moreno-Gomez’s counsel objected to the reasonableness of the sentence. Id.

II. DISCUSSION

On appeal, Moreno-Gomez first argues that he should have been given a minor-role reduction based on his limited role in the smuggling operation. We have “long and repeatedly held that a district court’s determination of a defendant’s role in the offense is a finding of fact to be reviewed only for clear error.” United States v. De Varon, 175 F.3d 930, 937 (11th Cir.1999) (en banc). Second, Moreno-Gomez contends that his sentence of 168 months is unreasonable based on the district court’s failure to properly consider the § 3553(a) factors. We review final sentences imposed by the district court for reasonableness under an abuse of discretion standard. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir.2007) (per curiam); Gall v. United States, 552 U.S.-, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).

A. Minor-role Reduction

A district court may reduce a defendant’s base offense level by two if the defendant was a minor participant in the offense. U.S.S.G. § 3B1.2. In determining whether a minor-role reduction is warranted, a district court performs a two-prong analysis examining (1) “the defendant’s role against the relevant conduct for which he was held accountable,” and (2) the defendant’s “role as compared to that of other participants in [his] relevant conduct.” De Varon, 175 F.3d at 940. The district court may consider any and all facts probative of the defendant’s role in the relevant conduct. Id. at 943. In the drug courier context, relevant facts include, but are not limited to: the “amount of drugs, fair market value of the drugs, amount of money to be paid to the courier, equity interest in the drugs, role in planning the criminal scheme, and role in the distribution.” Id. at 945. We have not foreclosed the possibility that the amount of drugs in a courier’s possession may be dispositive in the extreme case. Id. at 943.

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Bluebook (online)
291 F. App'x 938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-yefer-dionicio-moreno-gomez-ca11-2008.